Flaherty v. Fleming et al.

• Decision Date: 06 February 1906
• Parties: Flaherty v. Fleming et al.
• Court: West Virginia Supreme Court

58 W.Va. 669

Flaherty

v.Fleming et al.

Supreme Court of Appeals of West Virginia.

Submitted January 12, 1906.

Decided February 6, 1906.

1. Easement Right of WayObstruction.

Right, by deed dated the 15th of July, 188 and duly recorded on the 22nd of July, 1889, conveyed to Flahert r a lot of land on the north side of Seventh Street in the city of Pari ersburg, "also a free right of way for an alley way twelve feet wide ex ending from the rear end of said lot across another lot owned by sai 1 Kight to the alley running to Latrobe Street." After this deed vas recorded, Kight conveyed the lot over which the right of way.ad been granted to Weber, and Weber conveyed it to Fleming. 1 eld: That under the circumstances of this case, the placing of a fe ice upon, or a gate upon and over, such right of way by Fleming, after becoming the owner of his lot, is a wrongful obstruction of such way, and in violation of the right of Flaherty under his deed. (p. 673.)

2. Easement Rigid of Way Obstruction Injunction.

Injunction is a proper remedy to prevent the maintenance of a wrongful obstruction of a private way. (p. 674.)

3. Injunction Criminal Proceeding.

It is a rule, subject to few exceptions, that a court of equity will not interfere by injunction with criminal proceedings, (p. 675.)

Appeal from Circuit Court, Wood County.

Bill by Michael W. Flaherty against Charles Fleming and E. F. Wilson. Decree for defendants, and plaintiff appeals.

Reversed.

j. W. Vandervort, for appellant.

j. Robert Anderson and F. L. Muhleman, for appellees. Cox, Judge:

This is an appeal from a decree sustaining a demurrer to, and dismissing, a bill in chancery, brought in the circuit court of Wood county by Michael W. Flaherty against Charles Fleming and. E, F. Wilson, Justice. The bill alleges, in substance: That J. W. Kight, by deed dated the 15th of July, 1889, and recorded on the 22nd of July, 1889, conveyed to Flaherty a lot of land on the north side of Seventh Street in the city of Parkersburg, and "also a free right of way for an alley way twelve feet wide extending from the rear end of said lot across another lot owned by said Kight to the alley running to Latrobe Street;" that after the recordation of this deed Kight conveyed the lot over which the right of way was granted to George Weber, and afterwards Weber conveyed it to Fleming by deed dated the 14th of April, 1897; that after Fleming became the owner of his lot he occasionally fenced up said right of way, so that Flaherty was not able to freely use the same; that about a week before the filing of the bill Fleming began the erection of a gate on and over said right of way, and obstructed the free use of such right of way by Flaherty; that shortly after Fleming purchased his lot Flaherty called Fleming's attention to the fact of the existence of such right of way; that Flaherty also gave notice in writing of his rights under his deed, to Fleming, and that if he did not remove the gate Flaherty would remove it; that, the gate not being removed pursuant to the notice, Flaherty tore it down; that Flemini; procured a warrant from Wilson, Justice, and caused Flal erty to be arrested upon a charge of injuring and defacing real property not his own; that such right of way twelve feet wide has been used by Flaherty since he purchased his lot, until so obstructed by Fleming; and that Fleming thi 3atens to replace said gate and to reconstruct said obstructs ons. Previous to the decree sustaining the demurrer and dis lissing the bill, a preliminary injunction had been awarded, as prayed for in the bill.

The principal controversy in this case is a diether or not the defendant Fleming may place upon and over such right of way a fence or gate. This involves a constr iction of the deed to Flaherty, and the ascertainment of the intention of the parties to it when it was made. It does not clearly appear by the bill what the condition of the right of v ay was when the deed was made. Therefore, what we shall iay in relation to the intention of the parties and the construe tion of the deed, will relate to the right of the owner of the ervient lot to obstruct the right of way after the time the deed was made, and not to any obstruction or obstructions t) such way which existed at the time of the making of the deed.

If there be no ambiguity, we must arrive at the intention of the parties from the language used. Tin words are to be taken in their ordinary and popular sense, mless it appears by the context that they were used in a d iferent sense, or unless when applied to the subject matter tl ey have a technical meaning. Railroad v. Schutte, 103 I. S. 118; Snodgrass v. Wolf, 11 W. Va. 158; Schuylkill Co. v. Moore, 2 Whart. 477. For the purpose of construe Ion, all parts of the deed must be considered together. Ba. her v. Ins. Co., 16 W. Va. 658; Heatherly v. Bank, 31 W. fa. 70. It rarely happens that the language used in one g *ant of an easement is exactly like the language used in mother. Therefore, each case must be determined accordi ig to the words used. The words here are: "a free right oi way for an alley way twelve feet wide." Generally, the mere grant of a right of way over land and nothing more, does no b pass any other right or incident. The owner of the soil m ty make any use of his land which does not interfere with a reasonable use of the way. Subject to the easement, his control extends indefi- nitely upward from the surface and downward ad inferos. Jones on Easements, § 391; 14 Cyc. 1201. However, where the easement is created by express grant, defining the rights of the parties, the terms of the grant must govern.

"Whether a grantee of a right of way is entitled to a way unobstructed by gates or bars depends upon the terms of the grant, the purposes for which it was made, the nature and situation of the property, and the manner in which it has been used." Jones on Easements, § 319; Field v. Leider, 118 111. 17; Cowling v. Iligginson, 4 M. & W. 245; Smith v. Worn, 93 Cal. 206; Houpes v. Anderson, 22 la. 161.

It is contended that the word "free" means free from compensation; without further payment. This contention cannot be maintained. The word "free" is found in a deed of grant. The consideration for the grant is named in it. If the word "free" means free in the sense that it is without further consideration, then it would be useless in this deed, and would give no more than the law would give without the use of the word. It is unnecessary to say "free" in the sense of without further consideration, in a deed of grant, in relation to the thing granted. There would be no more reason for using the wTord "free" in that sense, in relation to the right of way, than there would be for using it in relation to the lot granted by the deed. Without the use of the word in either case, the thing granted is free from the payment of consideration other than that agreed to be paid. It appears that the word "free," as used in this clause, qualifies and relates to "right of way" in a different sense. It is descriptive of the right of way the thing granted and is not descriptive of the use to be made of the right of way. Webster's Dictionary defines the word "free," when used in relation to a thing to be enjoyed or possessed, as follows: "Thrown open, or made accessible to all; to be enjoyed without limitation; unrestricted; not obstructed, engrossed, or appropriated; open." Applying that definition here, the word "free" indicates the condition and character of the "right of way" the thing granted, the thing to be enjoyed and possessed, In that sense, it means an unobstructed right of way, so far as any future act of the owner of the servient lot is concerned. The additional language, "for an alley way twelve feet wide," we think means for the purpose of an alley way twelve feet wide, or to be used as an alley way twelve feet wide. The way is definite, and fixed in width, and is "for an alley way." The words "alley way" have the same meaning as the word "alley." An alley may be public or private. When used in a plat or statute concerning towns or cities, it will be taken to mean a public way, unless the word "private" is prefixed or the context...